Denver & R. G. R. Co. v. Ristine

• Citation: 77 F. 58
• Decision Date: 02 November 1896
• Docket Number: 723.
• Parties: DENVER & R.G.R. CO. v. RISTINE, Receiver. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

77 F. 58

DENVER & R.G.R. CO. v. RISTINE, Receiver. ^[1]

No. 723.

United States Court of Appeals, Eighth Circuit.

November 2, 1896

Henry F. May (Edward O. Wolcott and Joel F, Vaile were with him on the brief), for appellant.

Henry T. Rogers, for appellee.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge.

The Denver & Rio Grande Railroad Company and the Colorado Midland Railroad Company each had roads running to the mining town of Aspen, in the state of Colorado. The former desired to extend its road at that place across the track of the latter to the Durant ore bins, and the latter desired to extend its road across the track of the former to the Cowenhoven tunnel. The Denver & Rio Grande Company being about to cross the track of the Colorado Midland Company with its road, that latter obtained from the proper state court an injunction enjoining it from so doing. The companies then entered upon negotiations, which resulted in a verbal agreement that each company might extend its road across the track of the other and thereupon, in consideration of this agreement, the Colorado Midland Company dismissed its injunction, and permitted the Denver & Rio Grande Company to extend its road across its track. Later, when the receiver of the Colorado Midland Railroad was about to extend the track of that road across the track of the Denver & Rio Grande, the latter company filed this bill or petition, in the court which appointed the receiver, praying that he be enjoined from so doing.

There is some conflict in the testimony as to the exact point at which the Colorado Midland road was to cross the track of the Denver & Rio Grande Company, but the circuit court found the agreement was made substantially as we have stated, and that the point at which the Colorado Midland proposed to make the crossing was within the limits agreed upon, and we are satisfied with that finding. The well-settled rule is that the findings of the lower court on an issue of fact should be taken as presumptively correct, and that a decree should be permitted to stand, unless some obvious error has intervened in the application of the law, or some serious or important mistake has been made in the consideration of the evidence. Warren v. Burt, 12 U.S.App. 591, 600, 7 C.C.A. 105 and 58 F. 101; Gaines' Ex'r v. Granger, 32 U.S.App. 342, 15 C.C.A. 118, and 68 F. 69; Paxson v Brown, 27 U.S.App. 49, 10 C.C.A. 135, 144, and 61 F. 874; Stuart v. Hayden, 18 C.C.A. 618, 72 F. 402; Snider v. Dobson, 21 C.C.A. 76, 74 F. 757; Tilghman v. Proctor, 125 U.S. 136, 8 Sup.Ct. 894; Camden v. Stuart, 144 U.S. 104, 12 Sup.Ct. 585; Crawford v. Neal, 144 U.S. 585, 596, 12 Sup.Ct. 759; Furrer v. Ferris, 145 U.S. 132, 12 Sup.Ct. 821; Cheney v. Bilby, 20 C.C.A. 291, 74 F. 52; Kimberly v. Arms, 129 U.S. 512, 9 Sup.Ct. 355; Evans v. State Bank, 141 U.S. 107, 11 Sup.Ct. 885; Ottenberg v. Corner (present term) 76 F. 263.

Assuming the verbal contract for the crossing of each other's track to be proved, the appellant insists that it is void under the statute of frauds, and that the appellee can claim no benefit from it in this suit. This contention rests on a misconception of the nature of this suit. This is not a suit by the Colorado Midland Company to enforce specific performance of the verbal agreement. It is a bill brought by the Denver & Rio Grande Company to enjoin the Colorado Midland Company from crossing its track. The Denver & Rio Grande Company is the complainant in the case, and the Colorado Midland Company the defendant. The burden is on the former company to show that it is justly and equitably entitled to the relief it seeks. Any evidence which shows that it would be inequitable to grant the injunction prayed for is admissible as matter of defense, whether it be written or oral, and whether it would or would not be sufficient to warrant a decree for a specific performance in a suit brought by the Colorado Midland Company to obtain that relief. When parol evidence is offered to prove a contract within the statute of frauds, in resistance to a suit for injunction, it does not contravene the statute. Jarrett v. Johnson, 11 Grat. 327. A contract within the statute of frauds is not illegal, but only not capable of being enforced. The statute was enacted for the purpose of preventing fraud, and not for the...